Doctrine of Constitutional Law and amendment

8/12/2019 Doctrine of Constitutional Law and amendment

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OR I G I N A N D SCOPE

TH AME R I C A N DO C T R I N E

CONSTITUTIONAL LAW.BY

JAMES BRADLEY T H A Y E R ,WEL PROFESS,OR OF L W T H A K V A R D UNIVERSITY

[ P er read at Chtcago August 9 1899 before fh Colrgrcss onJlurzsflru ieence and Law ref or^

B O S T O N :LITTLE, BROWN, A N D C O h l P A N Y .

1893.


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Llnibcrsitp3Yrtss :JO S WILSON ND S .A .ON ,CAMBRIDGE ,


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OR IG IN A N D SCOPE

T H AMER I C AN DOCTRINE

CONSTITUTIONAL LAMT.BY

JAMES BRADLEY THAYER ,/

\ V E L D PROFESSOR OF L A W A T H A R V A R D U N I V E R S IT Y

[ A Paper read at Clzicngo August 9 1895 efore the Congress onJ~crisflrrrdetzceand Law Refortn.1

B O S T O N :LITTLE, BROIVN, A N D COMPANY

1893.


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THE O R I G I N A N D SCOPEOF THE

A M E R I C A N D O C T R I N E

C O S S T I T U T I O N X L LA\17.

I OiV did our American doctr ine, which allows to the judi-ciary the power to declare legislative Acts unconstitu-t ional, and to t reat them as null , come abou t , and what is the t ruescope of i t?

I t is a s ingular fact th at the Sta te const i tu tions d id not g ivethis power to the judges in express term s it was inferential. - I nth e earliest of th ese in strum ents no language was used from whichit was clearly to be made out. Only after th e date of th e Fe dera lconsti tution was any such language to be found ; as in A r t ic l e X I 1of the Kentucky constitution of 1792 The existence of thepower was at f irst denied or doubted in some quarte rs an d so lateas t he year 1825, in a stro ng dissenting opinion, Mr. Justi ce Gibson,of Pennsylva nia, on e of th e ablest of A m erica n judges, an d after-wards t he chief justice of th at St at e, wholly denied i t un der an yconstitution which did not expressly give i t . l H e denied i t , there-fore , under the State const i tu t ions general ly , while admit t ing thatin that of the United S tate s the power was g iv en ; namely , in thesecond clau se of Arti cle VI., when providing th at the consti tution,and the laws and treaties ma de in pursuance thereof, shall be th esu pre m e law of t he land ; and th e judges in every Sta te shall be

Eakin v Raub r s S & R. 330


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AMERICAN DOCTRINE OF CONST TUTIONAL LA W

bound thereby, anything in the constitution or laws of any Sta teto th e co ntrary notwithstanding.S o far as the grounds fo r this remarkable power are found inth e m ere fac t of a constitution being in writing, or in judges being

sworn to support i t, they are quite inadequate. Neither thewritten form nor th e oath of th e judges necessarily involves therig ht of reversin g, displacing , or disregardin g any action of the legis-lature or the executive which these departm ents are constitution-ally authorized to take; or th e determination of those dep artm entsth at they ar e so authorized. I t is enough, in confirmation of this,to refer to the fact that other countr ies, as France, Germany, andSw itzerland, have written con stitutions, and tha t such a power isno t recognized the re. T h e restrictions, says Dicey, in his admir-ab le aw of the Co nstitution, placed on th e action of the legis-la tu re und er th e Fre nc h constitution ar e not in reality laws, sinceth ey a re not rules which in the last resort will be enforced by th eco urts . Th eir true ch ara cte r is tha t of maxims of political moral-ity, which derive whatever str en gt h they possess from being for-mally inscribed in the constitution, and from the resulting supportof public opinion.How came we then to adopt this remarkab le prac tice? Mainlya s a n at ur al 'result of our political ex perience before th e W ar ofInde pen den ce, as being colonists, governed under written char-ters of governm ent proceeding from the English Crown. T hete rm s an d limitations of these cha rters, so many written constitu-tions, were enforced by various means, by forfe iture of th e c ha r-te rs, by A c t of Parliam ent, by th e direct ann ulling of legislation byth e Crow n, by judicial proceedings and an ultimate appeal to th e

This opinion has fallen strangely out of sight. It has much the ablest discussionof the question which I have ever seen, not excepting the judgment of Marshall inMarbury v Madison, which, as I venture to think, has been overpraised. Gibsonafterwards accepted the generally received doctrine. I have changed that opinion,said the Chief Justice to counsel, in Norris v Clyrner, Pa. St., p. 281 (1845), for tworeasons. The late convention [apparently the one preceding the Pennsylvania consti-tution of 18381 by their silence sanctioned the pretensions of the courts to deal freelywith the Acts of the legislature; and from experience of the necessity of the case.

Ch. ii. p 27 gd ed. President Rogers, in the preface. to a valuable collection ofpapers on the Constitutional History of the United States, as seen in the Develop-ment of American Law, p. IX, remarks that .there is not in Europe to this day acourt with authority to pass on the constitutionality of national laws. But in Germanyand Switzerland, while the Federal courts cannot annul a Federal law, they may, ineither country, declare a cantonal or State law invaIid when it conflicts with the Federallaw. Compare Dicey, udi supra, and Bryce, Am. Corn., i. 430, note (1st ed.), as to pos-sible qualifications of this statement.


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M E R I C N D O C T R IN E OF CONSTITUTION L LAWPrivy Council. Our practice was a natural result of this; but itwas by no means a necessary one. ,/Ail this cSoniaT restraint wasonly th e usual and normal exercise of power. A n ex tern al author-ity had imposed th e terms of t he charters, the au thority of a para-m ount g overnm ent, fully organized a nd equipped for every exigencyof disobedience, with a king and legislature and courts of its own.T h e superior right and au thority of this government were funda-mental here, and fully recognized ; and it was only a usual, orderly,necessary procedure when our own courts enforced the samerights that were enforced here by the appellate court in England.These charters were in the strict sense written law: as their re-straints upon the colonial legislatures were enforced by the Englishco ur t of last resort, so might th ey be enforced thro ug h th e colonialcourts, by disregarding as null what went counter to them.lT h e Revolution came, and what happened then Simply this:we cut the cord th at tied us to Gr eat B ritain, and ther e was nolonger an external sovereign. O ur conception now was tha t thepeople took his place ; th at is to sa y, our own hom e population inth e several S ta te s were now their own sovereign. So far a s exist-in g institutions were left untouched, they were construed by trans-lati ng th e nam e and style of th e Eng lish sovereign into that of ou rnew ruler,-ourselves, the People. .A fte r this the cha rters, and stillmore obviously the new constitutions, were not so many ordersfrom without, backed by an organized outside gov ernm ent, whichsimply performed an ordinary function in enforcing them ; theywere precepts from the people themselves who were to be gov-erned, addresse d to each of the ir own num ber, and especially tothose who were charg ed with th e d uty of cond ucting the govern-m ent. No higher power existed to su ppo rt these orders by com-pulsion of th e ordinary sort. T h e sovereign himself, having writtenthe se expressions of his will, had retired int o th e clouds ; in anyr e g q a r course of ev ents he had no organ to enforce his will, exceptthose to whom his orders were addressed in these documents.How then should his written constitution be enforced if theseagencies did not obey him, i they failed, or worked a m iss ?

For the famous cases of Lechmere v Winthrop (1727-28), Phillips v Savager734),and Clark v Tousey 1745),see the Talcott Papers, Conn. Hist. Soc. Coll., iv.94, note. For the reference to this volum e am indebted to the Hon. Mellen Cham-berlain, of Boston. The decree of the Privy Council, in Lechmere v Winthrop, declar-ing null and void a provincial Act of nearly thirty years sbn din g, is found in Mass.His t. S oc. Colt., sixth series, v. 496.


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AMERICAN D O C T R I N E O F C OA 7S TI TU TI QN AL LA WHere was really a different problem from that which had been

presented under the old state of things. And yet it happened thatno new provisions were made to meet it. The old methods andthe old conceptions were followed. In Connecticut, in 1776, by amere legislative Act, the charter of 1662 was declared to continue"the civil Constitution of the State, under the sole authority ofthe People thereof, independent of any King or Prince whatsoever;"and then two or three familiar fundamental rules of liberty andgood government were added as a part of it. Under this the peo-ple of Connecticut lived till 1818. In Rhode Island the charter,unaltered, served their turn until 1842; and, as is well known, itwas upon this that one of the early cases of judicial action arosefor enforcing constitutional provisions under the new order ofthings, as against a legislative Act namely, the case of Trevett vWeeden, in the Rhode Island Supreme Court in 1786.l

But it is instructive to see that this new application of judicialpower was not universally assented to. It was denied by severalmembers of the Federal convention, and was referred to asunsettled by various judges in the last two decades of the lastcentury. The surprise of the Rhode Island legislature at the actionof the court in Trevett v Weeden seems to indicate an impressionin their minds that the change from colonial dependence to inde-pendence had made the legislature the substitute for Parliamentwith a like ornnipotence.2 In Vermont it seems to have been theestablished doctrine of the period that the judiciary could not dis-regard a legislative Act and the same view was held in Connec-

Varnum's Report (Providence, 1787); s c. Chandler's Crim. Trials, 269.And so of the excitement aroused by the alleged setting aside of a legislative Actin New York in 1784, in the case of Rutgers v Waddington. Dawson's edition of thiscase, With an Historical Introduction (Morrisania, 1866), pp. xxivet seq. In anAddress to the People of the State, issued by the committee of a public meeting ofthe violent Whigs, it w s declared (pp. xxxiii) Tha t there should be a powervested in Courts of Judicature, whereby they might control the Supreme Legislativepower, we think is absurd in itself. Such powers in courts would be destructive of lib-erty, and remove all security of property. For the reference to this case, and a num-ber of others, I am indebted to a learned article on The Relation of the Judiciary tothe Constitution (19 Am. Law Rev. 175) by William M Meigs, Esq., of the Philadelphiabar. It gives all the earliest cases. The first, so far as is now known, was the unre-ported New Jersey case of Holmes a. Walton, in 1780. This date has been ascertainedby Professor (now President) Scott, of Rutgers College. See Am. Hist. Assoc.Papers, 45 (1886). For this reference I am indebted to the courtesy of Mr. Meigssince this paper was in print.The early practice of repealing Acts which had been held uncol~stitutional s signifcant. Meigs, in r Am. Law Rev. 188.


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MERIC N DOCTRINE OF CONSTITUTION LL W 7ticut, as expressed in 1795 by Swift, afterwards chief justice o?tha t State . In the preface to I 1 Chipman's (Vermont) Reports,22 el seq. the learned reporter, writing (in 1 8 2 4 ) of the period ofth e Ve rm ont constitution of 1777, says tha t No idea was enter-tained that the judiciary had any power to inquire into the consti-tutionality of A ct s of th e legislature, or to pronounce them voidfor any cause, or even to question their validity. And a t page25, speaking of the year 1785, he add s: Lon g af ter the per iodto which we have alluded, the doctrine that the constitution is thesupre m e law of the land, and that the judiciary have autho rity toset aside A cts repug nant thereto, was considered anti-repub-lican. In 1814 ~or the first time, I b~ l i eve ,we find this courtanno uncin g an A ct of th e Sta te legislature to be void as againstthe constitution of the S ta te and the Un ited Sta tes, and even thelaws of nature. I t may be remarked he re that the doctrine ofdeclaring legislative A ct s void as being contra ry to t he constitution,was probably helped into existence by a theory which found somefavor am ong our ance stors a t th e time of the R evolution, that cou rtsm ight disregard such acts if they were contrary to th e fundame ntalmaxim s of morality, or, as it was phrased , to th e laws of nature.Su ch a do ctrine was thoug ht to have been asserted by En glishwriters, and even by judges a t times, but was never acted on. I tha s been repeated here, as m atter of speculation, by ou r earlierjudges, and occasionally by later ones ; bu t in no case within myknowledge has it ever been enforced where it was the single an dnece ssary grou nd of t h e decision, nor can it be, unless a s a revolu-t i o n a r y m e a ~ u r e . ~In Swift's Sy stem of th e Laws of Connecticut, published in1795: th e auth or arg ues stron gly an d elaborately aga inst the powerof th e judiciary to disre ga rd a legislative ena ctm ent, while men-

Dupuy v Wickwire, D Chipman, 237.Th is subject is well considered in a learned note t o Paxton's Case (1761), Quincy'sRep. 51, relating to W rits of A ssistance, understood to have been prepared by Ho raceGray, Esq., now Mr. Justice Gray, of the Su preme Court of the United States. See thenote at pp. 520-530. James Otis had urged in his argumen t that an A ct of Par lia-ment against the Constitution is void (Quincy, 56, n., 474). T h e American casessometimes referred to as deciding that a legislative Act was void, as being contrary t othe first principles of m orals or of governmen t, c.g n Q uincy, 529, citing Bowm an VMiddleton, I Bay, 252, an d in Bryce, Am. Corn., 431, n. 1st ed., citing G ardner v New-burgh, 2 Johns. Ch. Rep. 162, will be found, on a careffil examination, to requ ire nosuch explanation.8 Vo1. i. pp 50 t sq


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8 AMERICAN DOCTRINE OF CONSTITUTIONAL LAWt ion ing th at t h e co ntra ry opinion is very popular an d prevalent.I t will be agreed, he says, i t is as probable th at t he judiciarywill declare laws unconstitutional which are not so, as it is that thelegi slatu re will exceed thei r constitution al authority. Bu t h emakes th e very noticeable admission that there may be cases somonstrous, e g. n A ct authorizing conviction for cr ime withoutevidence, or secu ring to th e legislature their own se ats for l ife ,

so manifestly unconsti tutional that i t would seem wrong torequire th e judges to regard i t in their decisions. As la te as1807 an d 1808, judges were imp each ed by th e legislature of Oh iofor holding A c ts of th at body to b e void.'

11 W he n at last this,power of t h e . judiciary was everywhereestablished, an d a dded t o th e oth er bulwarks of our w rit ten con-sti tutions, how was th e power to be conceived o f ? Str ictly asa judicial one. T h e St ate consti tutions had been scrupuloust o pa rt off th e powers of government into three and in givingone of them to e ach depa rtmen t, had sometimes, with curiousexplicitness, forbidden it to exercise either of the o the r s. Th elegislative department, said the Massachusetts consti tution inI 780?

Shall never exercise the executive and judicial powers, or either ofthem ; the executive shall never exercise the legislative and judicialpowers or either of them ; the judicial shall never exercise the legislativeand executive powers or either of them ; to the end, it may be a gov-ernm ent of laws, and not of men.With l ike emphasis, in 1792, th e constitution of K ent uck ysaid

ach of them to be confided to a separate body of magistracy; towit, those which are legislative to one, those which are executive toanother, and those which are judiciary to another. No person or collec-tion of persons, being of one of these departments, shall exercise anypower properly belonging to either of the others, except in the instanceshereinafter expressly permitted.The refore, since the power now in question was a purely judi-cial one, in th e f irst place, th ere were many cases where i t had n o .opera t ion . In the case of purely political ac ts an d of th e exercise

Cooley, Const. Lim., 6th ed., 193 I Chase s Statutes of Ohio, preface, 38-40.Fo r the la st reference I am indebted to my colleague, Professor Wirn~baugh.Part I Art. 30.Art. I.


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iJlERIC DOCTRINE OF CONSTlTUTION L L Wof mere d iscre t ion , i t mat te red not tha t o ther depar tments wereviolat ing the consti tut ion, the judiciary could not interfere ; on thecontrary , they m us t accept an d enforce the i r ac ts . Ju dg e Cooleyhas lately said

The common impression undoubtedly is that i n the case of anylegislation where the bounds of constitutional authority are disrega rded ,the judiciary is perfectly competent to afford the adequate remedytha t the Act indeed must be void, and that any citizen, as well a s thejudiciary itself, may treat it as void, and refuse obedience. Th is, how-ever, is far from being the fact.

Ag ain, w here th e power of th e judiciary did hav e place, i tswhole scope was this ; namely, to de termine , , for t he mere purposeof deciding l i tigated question properly sub m itted to th e cou rt ,wh ethe r a particular dispu ted exercise of power was forbidden bythe cons t i tu t ion . In doing th is the cour t was so to d ischarge i t soffice as not to deprive an othe r de partm ent of an y of i ts p roperpower, or to l imit i t in th e proper ran ge of i ts discret ion. Notmerely, then , do these ques t ions , when pr ese t~ t in g hemselves inth e courts for judicial a ct ion, call for a peculiarly large meth od inthe treatment of them, but especial ly they require an al lowance tobe made by the judges for the vast and not definable ran ge oflegislative power an d choice, for tha t wide marg in of co nsid era-t ions which add ress themselves only to the practical judgmen t of alegislat ive body. I i ' i thin tha t marg in, as am on g all these legis la-t ive considerat ions, the con sti tut ional law-makers m ust be alloweda free foot . In so far as legislat ive choice, rang ing he re unfet-tered , may select one form of act ion or ano ther, th e judges m ustnot interfere, s ince th ir question is a naked judicial one.

Moreover, such is th e n ature of this part icular judicial quest iontha t the pre l iminary de terminat ion by the legis la ture i s a fac t ofvery grea t importance , s ince the cons t i tu t ions express ly in t rus tto the legis la ture th is de terminat ion ; they cannot ac t wi thoutma king i t. Fu r the rm ore , the cons ti tu t ions not merely in t rus t tothe legis latures a prel iminary determination of the quest ion, butthey contempla te tha t th is de terminat ion may be th e f inal one ;for they secu re no revis ion of i t . I t is only as l it igation may sprin gup, and as th e course of i t may h app en to raise th e point of consti-tu t ionali ty , tha t any ques t ion for the cou r ts can regular ly em erge .I t may be, then , that t he me re legislat ive decis ion will accomplish

Journal of the Michigan 1'01. Sc. Association, vol. i p. 47.


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1 MERICAiV DOCTRINE OF CONSTITUTIONAL W.

resul ts throu ghou t th e country of the profoundest imp ortancebefo re an y judicial quest ion can arise or be decided -as in thecase of the f i rst and second charters of the Un ited St ate s Bankand of th e legal tender laws of thir ty years ago and later . T h econstitutionality of a ban k ch arte r divided the cabinet of W ashing-ton a s it divided political parties for more than a generation. Y etwhen the f i rst cha rter was given in 1 7 9 1 ,to last for twenty yearsi t ran through i ts whole l ife unchallenged in th e cou rts and wasrenewed in 1816. Only af ter three years from that did the ques-tion of i ts constitutionality com e to decision in th e Su prem e Co urtof the Un ited States. I t is peculiarly imp ortant to observe thatsuch a result is not an exceptional or unforeseen one; i t is aresult antic ipated and clearly foreseen. Now it is th e legislatureto whom this power is given this power not merely of ena ctinglaws but of putt ing an interpretat ion on the const i tut ion whichshall de eply affect th e whole country en ter into vitally changeeven revolutionize the most serious affairs except as some indivi-dual may find i t for his p rivate intere st to carry the m atter intocourt . S o of th e legal t en de r legislation of 86 and later. M oreim po rtant act ion more intimately and more seriously touching theinterests of every member of our population it would be to hard toth in k of. T h e constitutionality of i t althoug h now upheld wasa t f i rst denied by the Su prem e Court of the United States. T helocal courts were divided on it and professional opinion has alwaysbeen divided. Y et i t was th e legislature tha t determined thisquestion not merely primarily bu t once for all except as someindividual am on g t h e innum erable chances of his private affairsfoun d it for his interes t to raise a judicial question ab out it .I t is plain tha t where a power so momentous as this primaryauth ori ty to interpret is given the actual determinations of thebody to whom i t is intrusted a re ent it led t o a corresponding respectand this not on mere grounds of courtesy or conventional respectb u t on v ery solid and significant ground s of policy and law. T h ejudic iary may well reflect th at if the y had been regarded by th epeople as th e chief prote ction a ga ins t legislative violation ofth e con stitution the y would not have been allowed merely this inci-den tal and postponed control. T he y would have been let in a s itwas sometimes endeavored in th e conventions to let them in to arevision of th e laws before they began to 0perate.l A s the oppor-

The constitution of Colombia, o 1886 art. 84 provides that the judges of thesup rem e Court may take part in the legislative debates over bil ls relating to civil


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tunity of the judges to check and correct unconstitutional A cts isso limited, i t may help us to understand why the e xten t of the ircontrol, when they do have the oppo rtunity, should also benarrow.t was, then, all along true, and it was foreseen, that much which

is harmful and unco nstitutional may take effect without any capacityin th e co urts to p revent it, sinc e their whole power is a judicial one.matters and judicial procedure. And in the case of legislative bills which are objec tedto by th e governm ent as unconstitutional, if the legislature insist on the bill, asagainst a veto by the government, it shall be submitted to the Suprem e Cou rt, whichis to decide upon this question finally. Arts. o and 150. See a translation of thiscons titution by Professor M oses, of the U niver sity of C alifornia, in the supple mentto the Annals of the American Academ y of Political and Social Science, for January,'893.We are much too ap t to think of the judicial power of disregarding the acts of theother departm ents as our only protection against oppression and ruin. But it is remark-able liow snlall a part this played in any of the debates. T h e chief protectio ns were awide suffrage, shor t terms of office, a double legislative chamber, an d the so-called ex-ecutive veto. Th ere was, in general, the greatest unwillingness to give th e judiciaryany sha re in the law-making power. I n New York, howeve r, the constitution of 1777prov ided a Council of Revision, of which several of the judges were mem bers, to whomall legislative Acts should be submitted before they took effect, and by whom they mustbe approved. Th at existed for more than forty years, giving way in the constitution of1821 to the comm on expe dient of merely requiririg the app rova l of the executive, or inthe alternative , if he refused it, the repassing of the A ct, perhaps by an increased vote,by both bran ches of the legislature. In Penn sylvania (Const. of 1776, 47) and Ver-mont (Const. of 1777, 44) a Council of Ce nsors was provided for, to be chosen everyseven years, who were to investig ate the conduct of affairs, and point o ut, among othe rthings, all violatio ns of the cons titution by any of thedepa rtm ent s. In Pennsylvania thisarrangem ent lasted only from 1776 to 1790; in Verm ont from 1777 to 1870. In framingthe constitution of the U nited States, several of these expedients, and others, were urged,and at times adopted e g ha t of New York. I t was proposed at various times tha tthe genera l government sho uld have a negative on all the legislation of the Sta tes ;that the governors of the Sta tes should be appointed by the United States, an dshould have a negative on State legislation; that a P rivy Council to the Presidentshould be appointed, composed in pa rt of the judges; and that the P resident and th etwo houses of Congress might obtain opinions from the Supreme Co urt. But at lastthe cnnvention, rejecting all these, settled dow n upon the common e xpedients of twolegislative houses, to be a check apon ea ch other, and of an executive revision an dveto, qualified by the legislative power of r econ sidera tion and ena ctm ent by a majorityof two-thirds upon these expedients, and upon the declaration that the constitution,and constitutional laws and treaties, shall be the suprem e law of the land, and shallbind the judges of the several S tates. Th is provision, s he phrasing of it indicates,was inserted with an eye to secure the authority of the general government as againstthe States, 6 as an essen tial featu re of any efficient Fed era l system, and not w ithdirect reference to the oth er departm ents of th e government of the Un ited State s itself.T he first fon n of it was that legislative A cts of the Un ited States, and treaties, ar e thesupreme l w of the respective Stateg and bind the judges there as against their ownlaws.


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Th eir in te rferen ce was bu t one of m any safeguards, and i t s scopewas narrow.

T h e rig or of this limitatio n upon judicial action is som etime sfree ly recognized, ye t in a perve rted way which really opera tes toexten d th e judicial function beyond i ts just bounds. T h e court'sdu ty , we are told, is th e mere and s imple office of constru ing twowri t ings and com paring one wi th another , as two contrac ts or twos ta t u te s a r e cons t rued and compared when they are sa id to con-flict of dec larin g th e tru e m ean ing of eac h, an d, if th ey ar e op-posed t~ each other, of carry ing into effect the consti tut ion as beingof superior obligation,- an ordinary and humb le judicial duty, asth e cour ts somet im es describe i t . Th is wnjr of putting it easily re-su lts in th e wro ng kind of disregard of legislative considerationsnot merely in refusing to le t them direct ly operate as grounds ofjud gm ent, bu t in refusing to consid er them a t all . Instead oftak ing them into account an d allowirlg for them as furnishing pos-s ib le grounds of legislative action, there takes place a pedantic andacademic treatm ent of the te s ts of t he consti tut ion and the laws.A nd so we miss that combination of a lawyer's rigor with a states-man's breadth of view which should be found in dealing with thisclas s of question s in constitu tional law. Of this p etty m ethod weha ve man y sp ecim ens they ar e found only too easily to-day inthe volumes of our current reports .In order , however, to avoid fal ling into these narrow and l i teralmethods, in order to p revent th e courts from forgett ing, as Marshallsaid, tha t i t is a consti tut ion we ar e expounding, these l i teralprecepts about the na tu re of th e judicial tas k have been accom-panied by a rule of administration which has tended, in competenthands, to give matters a very different complexion.111 Let us observe the course which the courts , in point offact, have taken , in a dm inis tering this interest in g jurisdict ion.

T he y began by res t ing i t upon th e very simple ground tha t thelegis lature had only a delegated and l imited autho ri ty under th econsti tut ions th at these res traints , in orde r to be operative, mustbe regarded as so much law and, a s being law, tha t they must beinterpre ted and appl ied by the cour t . This was put as a meremat te r of course. T h e reasoning was s imple and narrow. Su chwas H amilton's method in t he Federal is t , in 1788, while discussingth e Federa l cons t i tu t ion , but on grounds applicable , as he con-

No 78 irst published on ) l ay 28, 1788. See Lodge's edition, pp. xxxv i and x l iv .


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AMERICAN DOCTRINE OF COh STITUTIONAL L W I3ceived, to all others. So, in 1787, the Sup rem e Court of N orthCarolina had argued that no Act of the legislature could alter theconstitution ; tha t th e judges were as much bound by the constitu-tion a s by any othe r law, and a ny Ac t inconsistent with i t m;st beregarded by them a s abrogated. Wilson, in his Lectures at Phila-delphia in 179 0-179 1,~ aid th at t he constitution was a supremelaw, and it was for th e judges to declare and apply it ; what was sub-ordinate must give way ; because one branch of th e gove rnm entinfringed th e constitution, it was no reason why an othe r should abe tit. In Virginia, in 1793, the judges put it tha t cou rts were simply tolook a t all the law, including the c onstitution they were only to ex-pound the law, and to give effect to that part of it which is funda-menta1.a Pa tterson, one of th e justices of th e S up rem e Co urt ofth e Un ited Sta tes, in 1795, on the Pennsylvania circuit: said th atthe constitution is the commission of the legislature ; if their Actsa re not conformable to it, they are without autho rity. In 1796, inSo uth Carolina: th e matte r was argued by the court as a bald andm ere question of conformity to param ount law. A nd such , in1802, was th e reasonin g of the G enera l Co urt of M aryland?Finally, in 1803 cam e Marbury v Madison,T with the same severeline of arg um ent. T h e people, it was said, have established w rittenlimitations upon the legislature ; these control all repugnant legis-lative Acts ; such Acts are not law this theo ry is essentiallyattac hed to a written c on stitutio n; it is for th e judiciary to saywhat th e law is, and if two rules conflict, to say which go ve rn s;the judiciary are to declare a legislative A c t void which conflictswith the constitution, or else th at instrum ent is reduced to nothing.A nd then, it was added, in th e Federal instrum ent this power isexpressly given.N othin g could be more rigorous than all this. As the mat te rwas put, the conclusions were necessary. Much of this reason ing,however, took no notice of the remarkable peculiarities of th e situ-ation ; it went forward a s sm oothly as if the constitution were aprivate letter of attorney , and th e court s du ty unde r it were pre-cisely like a ny of its mo st o rdinary operations.But these simple precepts were supplemented by a very signifi-

Den d. Bayard v Singleton, I Martin, 42. 2 Vo1. i p 4608 Kamper v Hawkins, I Va. Cas 204 Vanhorne s Lessee v Dorrance, 2 Dall 304 .Lindsay v Com rs, 2 Bay, 386 Whittington v ~ o l k , ~ I Cranch, 137. J 236


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can t ru le of adm in is t ra t ion , one which corrected thei r operat ion ,and brough t in to p ln j. l arge considerations not adver ted to in t h ereason ing so f a r men t ioned . In 181 I l Chief Just ic e Ti lg hm an, ofPennsy lvania, while asse rt ing th e power of t he court to hold lawsunconst i tu t ional , bu t decl in ing to exercise i t i n a part icular case,s ta te d th is ru le a s fo l lows: -

For weighty reasons. it has been assumed as a principle in consti-tutional construction by the Supreme Court of the United Sta tes, by thiscou rt, and every other court of reputation in the United States, that anAct of th e legisla ture is not to be declared void unless the violation of theconstitution is so manifest as to leave no room for reasonable doubt.

I \ 'hen did t his rule of ad ministrat ion begin Very early . \ I reobse rve tha t i t is referred to as thoroughly established in 1811.I n the earliest judicial conside ration of th e power of th e judiciaryo v er t h is s u b j e c t, of w hic h a n y r e po r t is p r es e rv e d, - a n obiteldiscussion in Virginia. in 1 ; S z L while t h e gen eral power of th ecou rt is declared by oth er judges with histr ionic em phasis , Pendleton,th e pre sid en t of th e co urt, in declinin g to pass upon it , foreshadowedthe reasons of this rule, in remarking,-

I How far th is court, in whom the judiciary powers may i n some sort besaid to be concentrated, shall have power to declare the nullity of a l awpassed in its forms by the legislative power, without exercising the power ofthat branch, contrary to the plain terms of that constitution, is indeed adeep, imp ortant, and, I will add, a tremendous question, the decision ofwhich would involve consequences to which gentlemen may not haveextended their ideas.T h e r e is no occasion, he added , to consider i t here . I n 1793,whe n th e G ene ral C ourt of I7irgin ia held a law unconst itu t ional ,Ty le r , Ju s t i ce , r emarked? - '

But the violation must be plain and clear, or there might be dangerof the judic iary preve1;ting the operation of laws which might producemuch public good.I n th e Fe de ral convention of 1787, while th e power of declar inglaws unconst i tu t ional was recognized, the l imits of th e power were

also admi t ted . I n t ry ing to make the judges revise al l legislat iveA c ts before they took effect, Wilson pointed out tha t laws migh t be

1 Corn.v Smith, Bin. 117 8 Kamper v Hawkins, I Va. Cases, p 60.2 Corn v Caton, 4 Call, 5


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MERIC N DOCTRINE OF CONSTITUTYON L L W I

dangerous and destruct ive, an d ye t not so unconsti tu tional as tojustify th e judge s in refusing to give them effect. l In 1796 Mr .Just ice Chase, in t he Sup rem e Cour t of the Un ited States: said ,th at without then determining w hether th e cour t could declare anA c t of Con gress void, I am free to declare tha t I will never exerAcise i t but in a very clear case. A n d in 1800, in th e sam e court,aas regards a s ta tu t e of Georgia , Mr . Jus t ice Pat terson, who hadalready, in 1795, on th e circuit, held a legislative A ct of Penn sylvan iainvalid, said that in order to justify the court in declaring any lawvoid, there m ust be a clear and unequivocal breach of the Consti-tution, not a doubtful an d argu me ntative implication.

In 1808 in Georgia it was strongly put, in a passage which hasbeen cited by oth er courts with approval. In holding an Ac t con-sti tutional, Mr. Just ice Charlton, for the cou rt , asserted th is power,as being insepa rable from th e organization of t he judicial d epartm ent.But, h e continued, in what m anne r should i t be exercised

No nice doubts, no critical exposition of words, no abstract rules ofinterpretation, suitable in a contest between individuals, ought to beresorted to in deciding on the constitutional operation of a statute. Th isviolation of a constitutional right ought to be as obvious to the compre-hension of every one as a n axiomatic truth, as that the parts are equal tothe whole. 1 shal l endeavor to illustrate this the first section of thesecond article of the coilstitutioll declares tha t th e executive functionshall be vested in the governor. Now, if the legislature were to vest theexecutive power in a standing committee of the House of Representatives,every mind would at once perceive the unconstitutionality of the statute .The judiciary would be authorized without hesitation to declare the Actunconstitutional. But when it remains doubtful whether the legislaturehave or have not trespassed on the constitution, a conflict ought to beavoided, because there is a possibility in such a case of the constitutionbeing with the legislature.

I n Sou th Carolina, in 1812: Chancellor W aties, always distin-guished for his clear assertion of th e power in th e judiciary todisregard unc onstitutional e nact me nts, repeats a nd strongly reaf-f irms it

1 feel so strong a sense of this duty tha t if a violation of the consti-tution were manifest, I should not only declare the Act void, but I should1 Ell Deb 344. 4 Grimball v Ross, charlton, 1759 Ware v Hylton, 3 Dall 171. 6 Adm'rs of Byrne v Adm'rs of Stewart,3 Des. 466.8 Cooper v Telfair, 4 Dall, 14.


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6 M E R I C N D O C T R I N E OF CONSTITUTlON L LAWthink I rendered a more important service to my country than in dis-charging the ordinary duties of my office for many years. But while Iassert this power and insist on its great value to the country, I am notinsensible of the high deference due to legislative authority. It is supremein all cases where it is not restrained by the constitution ;and as it is theduty of legislators as well as judges to consult this and conform their actsto it, so it should be presumed that all their acts do conform to it unjessthe contrary is manifest. This confidence is necessary to insure dueobedience to its authority. If this be frequently questioned, it musttend to diminish the reverence for the laws which is essential to thepublic safety and happiness. I am hot, therefore, disposed to examinewith scrupulous exactness the validity of a. law. It would be unwise onanother account. The interference of the judiciary with legislative Acts,if frequent or on dubious grounds, might occasion so great a jealousy ofthis power and so general a prejudice against it as to lead to measuresending in the total overthrow of the independence of the judges, and soof the best preservative of the constitution. The validity of the lawought not then to be questioned unless it is so obviously repugnant tothe constitution that when pointed out by the judges, all men of senseand reflection in the community may perceive the repugnancy. By sucha cautious exercise of this judicial check, no jealousy of it will be excited,the public confidence in it will be promoted, and its salutary effects bejustly and fully appreciated.

This well-known rule is laid down by Cooley (Const. Lim., 6th ed., 216), and sup-ported by emphatic judicial declarations and by a long list of citations from all partsof the country. In Ogden v Saunders, I Z Wheat. 213 (1827), Mr. Justice Washington,after remarking that the question was a doubtful one, said If I could rest my opiilionin favor of the constitutionality of the law on no other ground than this doubt, so feltand acknowledged, that alone would. in my estimation, be a satisfactory vindication ofit . I t is but a decent respect due to the. legislative body by which any law is passed, topresume in favor of its validity, until its violation of the constitution is proved beyondall reasonable doubt. This has always been the language of this court when that sub-ject has called for its decision ; and know it expresses the honest sentiments of eachand every member of this bench. In the Sinking Fund Cases, 99 U. S. 700 (1878),Chief Justice Waite, for the court, said This declaration [that an Act of Congress isunconstit~~tional]hould never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary isshown beyond a rational doubt. One branch of the governlilent cannot encroach onthe domain of another without danger. The safety of our institutions depends in nosmall degree on a strict observance of this salutary rule. 111Wellington r t al . Peti-tioners, 16 Pick. 8 (18343, Chief Justice Shaw, for the court, remarked that it wasproper to repeat what h s been so often suggested by courts of justice, that when calledupon to pronounce the invalidity of an Act of legislation [they will] never declare astatute void unless the nullity and invalidity of the Act are placed, in their judgment,beyond reasonable doubt In Com. v Five Cents Sav. Bk. Allen, 428 (1862), ChiefJustice Bigelow, for the court, said I t may be well to repeat the rule rf expositionwhich has been often enunciated by this court, that where a statute has been passed


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ME RI C N DOCTRINE OF CONSTZTUTION L L W

IV I have accumulated these citations and run them back toth e beginn ing, in order tha t it may be clear th at the rule in ques-tion is som ething m ore than a m ere form of language, a mere ex-pression of courtesy an d deference. It means far more than that.he courts have perceived with more or less distinctness that thisexe rcise of the judicial function does in t ruth go far beyond thesimple business which judges sometimes describe. If th eir du tywere in truth merely and nakedly to ascertain the meaning of

th e text of th e con stitution and of th e impe ached A c t of th elegislature, and to determine, as an academic question, whether inwith all the forms an d solemnities required to give it the force of law, the presump tionis in favor of its validity, and tha t the court will not declare it to be .voi d unless itsinvalidity is established beyond reason able doubt." And he goes on to sta te a corollaryof this "well-es tablished rule." In x parit M'Collum, r Cow. p. 564 (r82 3) , Cow en, J.(for the court) , sa id : Before the court will deem i t their duty to declare an Act of th elegislature unconstitutional, a case must be p resente d in which there call be no rationaldoubt. " In the People v T h e Superv isors of Orange, 17 N. Y. 235 (1858), Ha rris , J. (forthe court) , said : " A legislative Act is not to be declared void upon a mere conflict ofinterpreta tion between the legislative and the judicial power. Before proceeding toannul, by judicial sentence, what has been enacted by the law-making power, it shouldclearly appea r that the Act cannot b e su pported by any reasonable intendment or al low-able presumption." In Perry v Keene, 56 N. H. 514, 534 (1 87 6) ~ add, J. (wi th theconcurrence of the re st of the court), said : Certainly i t is not for the court to shrinkfrom the discharge of a const i tut ional du ty ; but , at the sam e t ime, i t is not for thisbranch of the government to set an exam ple of encro achm ent upon the province of theothers. I t is only the enunciat ion of a rule that is now elementary in the AmericanStates, to say tha t before we can declare this law unconstitutional, we must be fullysat isfied sat isfied beyond a reasonable doubt- tha t th e purpose for which the tax isauthorized is private, and not public." In T h e Cincinnati, etc., Railroad Company,I Oh. St . 77 (1 85 2) ~ anney, J. (for the court) , said "W hi le the r ight and duty otinterference in a p roper case are thu s undeniably clear, the principles by which a co urtshould be guided in such an inquiry are equally clear, both upon principle an d author-ity. I t is only when manifest assump tion of authority and clear incompatibility be-tween the.constitution and the law appear, th at the judicial power can refuse to executei t. Such interference can never be permit ted in adoubtful case. An d this results from thevery nat ure of the question involved in the inquiry. T h e adjudged case s spe ak a uni-fo rm langua ge on this subject. An unb rok en chain of decisions to the sam e effect is tobe found in the St ate courts." I n Syndics of B rooks v Weyman, 3 Mart in (La.) , g, 12(1813), it was said by the cou rt : W e reserve to ourselves the authori ty to declare nullany legislative Act which shall be repugnant to the constitution ; but it must be inani-fes tly so, no t sus cep tible of doubt ' (Ci ted with app rova l in Johnson v Duncan, Ib.539.) I n Cotton v The County Commissioners , 6 F la . 610 (1856), Dupont, J. (forth e court) , said I t is a most grave and important power, not t o be exercised l ightlyor rashly, nor in any case w here i t cannot be mad e plainly to appear that the legislatureha s exceeded its powers. If there exist upon the mind of the court a reasona ble doubt,tha t doubt must be given in favor of the law. In further qupport of this posit ion maybe ci ted ny num ber of decisions by t h e Sta te courts. If there be one to be foundwhich consti tutes an exception to the general doctrine, i t has escaped our search."


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th e court s judgm ent th e two were in conflict, i t would, to be sure ,b e an elevated a nd imp ortant office, one dealing with gre at mat-ters, involving large public cons iderations, but yet a function farsimp ler th an it really is. H av ing ascertained all this, yet the re re-m ains a question th e really momentous question whether, af tera ll , th e cour t can disregard the Act . I t cannot do this a s a merem at ter of course, -merely because i t is concluded th at upon ajust and true construction the law is unconsti tutional. T h a t isprecisely the significance of the rule of administration that thecourts lay down. I t can only disregard th e Ac t when those whohave th e r ight to make laws have not merely made a mistake, buthav e ma de a very clear one, -so clear tha t it is not open to rationalquestion. T h a t is the standard of du ty to which th e courts bringlegislative A c ts th at is the test which they apply, -no t merelytheir own judgment as to constitutionality, but their conclusion asto what judgm ent is permissible to an other depa rtmen t which th econs ti tution has charged w ith t he du ty of making i t. This ru lerecognizes th at , havin g re gard to t he g re at, complex, ever-unfoldingexigen cies of governm ent, much which will seem unconstitutional toon e man, or body of me n, may reasonably not seem so to an othe rth at th e constitution often adm its of different interpretations th atthe re is often a range of choice and judgm ent ; tha t in su ch cases th econs ti tution does not impose upon the legislature an y one specif icopinion, bu t leaves open this ra nge of cho ice; and tha t whateverchoice is rational is constitution al. Th is is the principle which th er u le tha t I hav e been i l lustrating aff irms and supports. T h e mean-in g an d effect of i t are shortly and very str ikingly intima ted by arem ark of J ud ge Cooley,l to th e effect th at on e who is a m em ber ofa legislature may vote ag ainst a m easure as being, in his judgment,unconsti tutional and, being subseq uently placed on the bench,when this measure, having been passed by th e legislature in spiteof his oppo sition, com es before him judicially, may t he re find it hisduty, although he h as in no degree change d his opinion, to declarei t constitutional.W ill an y one say, You a re over-emphasizing this m atter , andmaking too mu ch turn upon th e form of a phrase No, I thinknot. I am aw are of th e da ng er of doing that. Bu t whatever maybe said of pa rticular instance s of ungu arded or indecisive judiciallangu age, it does not a ppea r to me possible to explain th e early,

1 Const. Lim., 6th cd. 8; cited with approval by Rryce, Am. Corn. 1st ed. i 431


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A.1IERIC.4Llr DOCTRIA E O CONSTITUTIONAL LA W . 1 9constant , and emphat ic s ta tements upon th is subject on any s l ightground. T h e form of i t is in languag e too familiar to cou rts ,having too definite a me aning, adopted with too general an agree-me nt, and insisted upon quite too en~ pha tica lly,o allow us to thinki t a mere cour teous and sn~ oo thl y ransmit ted p lat i tude. I t hashad to main tain i tself against denial a nd dispute. Incidentally,Mr. Jus tice Gibson disputed it in 1825, while de nyin g t he wholepower to declare laws un co n~ t i tu t i on a l .~ f there be any suchpower, he insisted (pag e 3 jz , the party 's r ights would depend , noton th e greatn ess of t he supposed discrepa ncy with t he consti tution,but on th e existence of any discrepancy at all . But th e ma jorityof th e co urt re affirm ed the ir power, and th e qualifications of it, withequal en ~p ha sis . Th is ru le was also denied in 1817 by JeremiahMa son, one of th e leaders of th e New E ngla nd bar , in his argu m entof the Dar tm outh College case, a t i ts ear l ier s tage , in S e w Ham p-shire .? H e said substant ia lly th is : A n erroneous opin ion s t i llprevai ls to a considerable ext ent , that t he c our ts . ought toact with more than ordinary del iberat ion , that theyoug ht not to declare A cts of th e legislature uncon stitutionalunless they com e to their conclusion with absolute certainty,and where the reasons are so manifes t that none can doubt .H e conceded that the cour ts should t reat the legisla ture withgrea t decorum , bu t the f inal decision, as in othe r cases,mu st be according to the unbiassed dictate of the understanding.Legislative A cts , he said, require for their passage at least a majorityof th e legislature, and th e reasons against the validity of th e A ctcan not ordinarily be so plain as to leave no m ann er of doubt. T h erule, then , really req uires t he court to s urren der i ts jur isdiction.Ex perie nce show s th at legislatures a re in th e constant habit ofexerting their power to i ts utmost extent. If the cour ts re t i re ,whenever a plausible grou nd of doubt c an be suggested, th e legis-lature will absorb all power. Such was h is argument . But not-withs tanding th is, the Suprem e Cour t of New Ham pshire declaredth at they could not act without a clear and strong conviction ;and on e rror , in 18 19 , Marshall , in his celebrated opinion at W ash -ington, declared, for th e co urt , th at in no doubtful case would i tpronounce a legislative Act t be contrary to the Constitution.

Again , when the gre at Char les River Bridge C as e3 was beforethe Massachuse t t s cour t s , in I 829, Daniel Ll'ebster, argu ing, toge ther

Eak i n v Raub, 2 S r R. 330 Pick. 344.2 Farrar s R e p . Dart. Coll. Case, 36.


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with Lem uel Sha w, for the plaint i ff , denied th e existence or proprietyof this rule. All such cases, he said (p. 442 involve som e dou bt ; i tis not to be supposed tha t th e legislature will pass an A c t palpablyunconst itu t ional . T h e correct g round i s that the cou r t will in ter ferewhe n a ca se app earin g to be doubtful is ma de out to be clear . Be-s ides , he added , " me mbe rs of th e legislature som etimes vote for alaw, of th e constitution ality of which they do ub t, on th e considerationthat the ques t ion may be determined by the judges . Th is A c tpass ed in th e H ou se of R ep res en tativ es by a m ajority of five or six.

. \ire could show, if i t were proper, that more than six members votedfor it because the unconstitutionality of i t w a s doubtful ; leaving it to thiscourt t o determ ine the question. f the legislature is to pass a law becauseits unconstitutiona lity is doubtful, and the judge is to hold it valid becauseits unconstitutionality is doubtful, in w h a t a predicament is the citizenplaced T he legislature pass i t de belle esse if the question is not metand decided here on principle, responsibility rests nowhere. . I t is theprivilege of an .Imerican judge to decide on constitutional questions . . .Judicial tribunals are the only ones suitable for the investigation of diffi-cult questions of private right.B ut the cour t d id no t y ie ld to th is ingenious a t tem pt to tu rnthem in to a board for answ er ing legis la t ive conundrums. Ins teadof devia ting from th e line of th ei r du ty for th e purpo se of corre ct-ing errors of th e legislature, they held that body to i ts own dutyan d i t s own responsibi l ity . Suc h a declaration, said Mr. Just ic eWilde in giving his opinion, 6 should never b e ma de bu t when thecas e i s c lear an d manifest to a ll in te l ligen t minds . W e must assum eth at t he leg is la ture have don e thei r du ty , and we must respectthei r const itu t ional r igh ts and powers . F ive years la ter, LemuelSh aw , who was \LTebster's associate counsel in th e case last men -t ioned, being now Chief Just ice of Massachuset t s , in a case1wh ere Jerem iah Ma son was one of the counsel , repeated with mu chemphas i s what has been so often sugg ested by co urts of justice,t h a t . co urt s will . . never declare a statute void unless thenulli ty and invalidity are placed beyond reasonable doubt.

rule th us powerfully at tacke d and thu s expl icit ly maintained,m ust b e t rea ted as hav ing been del iberate ly meant , bo th as regardsi t s sub stanc e and i t s fo rm. A s to t he form of i t , i t i s the morecalculated to st r ike th e at ten t ion because i t ma rks a famil iar andim po rta nt discriminat ion, of dai ly appl icat ion in our c ourts , in si tu-

\\'ellin&ton, Petr., 16Pick 8


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..l JfER/C AN DOCTRINE OF C ONS T/TU T/ON ~1LLAW 2at ions where the r ights , th e actions , and the author i ty of d if ferentde pa rtm en ts, different off icials , an d different individuals have to beharmonized. I t is a d is t inction and a tes t , i t may be added, th atcom e in to more and more prominence as our jur isprudence growsm ore intr ic ate and refined. In one application of i t , as we all know ,it is constantly resorted to in the cr iminal law in questions of self-defen ce, an d in t h e civil law of t or t in qu est ion s of neg ligenc e,-in answer ing the quest ion what might an indiv idual who has ar ight and perhaps a duty of act ing under g iven circumstances ,reasonably have supposed at that t ime to be t rue I t is the d is-crim inatio n laid down for se ttli ng th at d iffic~i lt uestion of a soldier 'sresponsibil ity to t he ordinary law of th e land when he has actedunder the orders of his military superior. H e may," says Dicey,in his La w of t he Constitution," as it has been well said, beliable to be shot by a court-martial if h e disobeys an order , an d tob e ha ng ed by a judge and jury if he obeys it. . Probably," hegoe s on, quo tin g with a pproval one of th e books of M r. Justic eS tephen , it would be found tha t th e orde r of a military supe riorwould justify his inferiors in exe cutin g any ord ers for givi ng whichth ey might fairly supp ose the ir superior officer to have good rea-sons. . T he only l ine tha t presents i tself to my mind is tha t asoldier should be protected by orde rs for w hich h e m ight reason-ab ly believe his officer to have good grounds." "his is th e dis tinc -tion adverted to by Lord Blackburn in a lead ing modern case inth e law of libel.3 iVh en the court," he said, com e to dec idewh ethe r a particular se t of words ar e or are not l ibellous, theyhave to decide a very different question from that which they haveto decide when determ ining whe ther anothe r t r ibunal migh tnot unreasonably hold suc h words to be l ibellous." I t is th e sam edisc rim inatio n upon which th e verdicts of juries are revised eve ryday in th e cour ts , as in a famous case where Lord Es he r appl ied i ta few years ago, when refus ing to set as ide a verdict? I t m ustappear, he said, '' that reasonable me n could not fairly f ind a s t hejury have done. I t has been said, indeed, tha t th e difference

3d ed., 279-281.It was so held in Riggs v State, 3 Cold. 85 (T e n n . , 1S66), and United States v Clark,

31 Fed . Rep. 710 ( U . Circ . Ct., E. Dist. Michigan, 1887, Brown, J.). I am indebtedfor these cases t o Professor Beale's valuable collectio~lof Cases on Cr iminal Law(Cambridge, 1893). he same doctrine is laid down by Judge Hare in 2 Hare, AmConst. Law 920.Cap. & Counties Bank v I l enty , App Cas., p. 776,Ijelt v Lawes , Thayer 's Cas. Ev. 177, n.


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MERIC N DOCTRINE O CONSTITUTIONAL L Wbetween [this] rule and the question whether the judges wouldhav e decided th e sam e way as th e jury, is evanescent, and the solu-tion of both depen ds on th e opinion of the judges. T he last partf th e observation is true, but th e mode in w hich th e subject is

approached makes th e greatest difference. T o ask Should wehav e foun d th e sam e verdict,' is surely not th e same th ing as toas k w he th er ther e is room for a reasonable difference of opinion.I n like m anne r, as re gards legislative action, there is often that ulti-mate question, which was vindicated for the judges in a recenthighly important case in the Supreme Court of the United States,lviz., th a t of th e reason ableness of a legislatu re's exe rcise of its mostundoub ted powers ; of th e permissible limit of those pow ers. If alegislature und ertakes to exert th e taxing power, tha t of emiaen tdom ain, o r a ny part of th at vast, unclassified residue of legislativeauth ority w hich is called, not always intelligently, th e police power,this action must not degenerate into an irrational excess, so as tobecome, in reality, something different and forbidden, e . g. thedepriving people of their property without due process of law ; andwhether it does so or not, must be determined by th e judg es2 Butin such c ases it is always to be remembered tha t t he judicial questionis a seco ndary one. T h e legislature in determ ining what shall bedone, w hat it is reasonable to do, does not divide its du ty with th ejudges, n or m ust it conform to the ir conception of what is prudent orreaso nab le legislation. T h e judicial function is merely that of fixingth e ou tsid e b order of reasonable legislative action, th e boundarybeyond which th e taxin g power, the power of em inen t dom ain, policepower, and legislative pow er in general, can no t go without violatingth e prohibitions of th e constitution o r crossing th e line of its gr a n ts a

Chic. &c. Ry. Co. v Minnesota, 34 U. S 418 Th e question was whether a statuteproviding for a commission to regu late railroad charges, wh ich excluded th e p artiesfro m access to tbe cou rts for an ultimate judicial revision of the action of the commis-sion, w s constitutional.Compare Law an d Fac t in Jury Trials, Harv. Law Rev. 167, 168.T h er e is often a lack of discrimination in judicial utteran ces on this sub ject, as ifit were supposed that the legislature had to conform to the judge's opinion of reason-ableness in some other sense than th at indicated above. Th e true view is indicated byJu dg e Cooley in his Prin ciples of Con st. Law; zd ed., 57, when he says of a articularquestion Prim arily th e determination of what is a public purpose belongs to the legis-lature, and its ==tion is sub ject-to no review or restrain t so long as it is not manifestlycolorable. A]] cases of do ubt mu st be solved in favor of the validity of legislative action,for the ob vious reason tha t the question is legislative, and only becomes judicial whenthere s a plain excess of legislative authority. A court can only arrest the proceedingsmd {leclarea levy void when the absence of public interest in the purpose for which


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I t m ust indeed be studiously reme mb ered, in judicially apply-ing such a tes t as th is of what a leg is la ture may reasonablyth ink , that v i r tue , sense , and com petent knowledge are a lways tobe attr ibute d to tha t body. T h e conduc t of public affairs mu stalways go forward ul)on c o n ~ ~ e n t i o n snd assump tions of t ha t so rt .

I t i s a postulate, said Mr. Ju sti ce Gibson, in th e theory of ourgovernmen t . . that the people are wise , v i r tuous , and compe-ten t to m ana ge their own affairs . I t would be indecent in th eextreme , said Rlarshall, C. J., 'uupon a priva te co nt ra ct betw eentwo individuals to e n ter in to an inquiry respect ing the cor ruptionof t h e sovereign power of a State. A nd so in a court 's revisionof legislative acts, as in its revision of a jury 's ac ts , i t will alwaysassume a duly ins t ructed body ; and the ques t ion is no t merelywhat persons m a y rationally do who are such as we often see, inpoint of fac t , in our legislative bodies, persons u ntau ght i t maybe, indocile, thou ghtle ss, reckless, incom petent, but what thoseother persons, competent, well- instructed, sagacious, at tentive,int en t only on public ends, fit to represent a s e lf governing people,such as our theory of governm ent assumes to b e car ry ing on ourpublic affairs , wha t suc h persons may reasonably th ink or do,wh at is th e permissible view for them . If, for example, wh at is pre-sented to the court be a question as to the consti tutionali ty of anA ct a lleged to be ex post facto, the re can be n o assu mp tion of igno-rance, however probable, as to a ny thi ng involved in a learned orcom pete nt discussion of tha t subject . A n d so of th e provisionsabout double jeopardy, or giving evidence against one's self , orattai nde r , or jury tr ial . T h e reasonable doubt, t he n, of which ourjudges speak is that reasonable doubt which l ingers in the mind ofa competent and duly instructed person who has carefully appliedhis faculties to th e que stion . T h e rationally pernlissible opinion ofwhich we have been talking is the opinion reasonably allowable tosuch a person as th is .the funds are to be raised is s o clear and palpable a s to be perceptible to any mind a tfirst blush. An d again, on ano ther question, by the Sup rem e Cou rt of the Unite d States,\Vaite, C. J. in Terry v Anderson, 95 S. p. 6 I n al l such cases the question isone of re ason ablen ess, and we hav e the refore only to consider whe ther the time allowedi n this Sta tute [of L imitatio ns] is, und er all the circumstances, reasonable. Of that thelegislature is primarily the judg e; and we cannot overrule the decision of that dep art -men t of the gov ernm ent, unless a palpable err or has been comm itted. See PickerillgP h ipps v Ry. Co. , 66 Law Times Rep. 721 ( r S g ~ ) , nd ava luab l e opinion by L add , ] . inPerry v ICeene, 56 N. IT. 514 1876).Eakin 21 Raul), 2 & I


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The ground on which courts lay down this test of a reasonabledo ub t for juries in criminal cases, is the great gravi ty of affect inga ma n w i th cr ime. T h e reason tha t they lay i t down for them-selves in reviewing the civil verdict of a jury is a different one,namely, because th ey ar e revis ing th e work of another depar tme ntcharg ed with a du ty of i ts own, having themselves no r ight tounde r t a ke t t du tj , , no r ight at a ll in th e ma tter except to holdth e oth er dep artm ent within th e l imit of a reasonable interpreta-t ion a n d exercise of i ts powers. T h e court must not, even nega-t ively, und ertake to pass upon the fac ts in jury cases. T h e reasonth at th e sam e rule is laid down in regard to revising legislativeac t s i s ne i ther t he one of these nor the oth er a lone , but i t is both .T h e cour ts a re revis ing th e work of a co-ordina te depar tment ,an d must not , even negatively , under take to legis la te . A nd ,again , they mu st not act unless th e case is so very clear, becauseth e con sequences of s e t t in g as ide legis la tion may be so ser ious .

f i t be said that t he case of declarin g legislation invalid is dif-fere nt from th e othe rs because t h e ul t imate quest ion here is one ofth e con struct io n of a wr i t i ng ; tha t this sort of quest ion is alwaysa cour t s quest ion, an d tha t i t cannot well be admit ted tha t thereshould be two legal const ruc t ions of the same ins t ru m en t ; tha tth er e is a r ight way an d a wrong way of cons truing i t ; and only oneright way and tha t i t i s u l t in~ a te ly o r the court to say wha t therigh t way is, this suggest ion app ears, a t f irst sight , to have muchforce. Bu t really i t begs the quest ion. Lord Blackburn s opinionin t h e libel ca se 1 related to th e construct ion of a wri t ing. T h edo ctrin e which we are now co nsidering is this, tha t in deal ing withth e legislative act ion of a co-ordinate dep artm ent , a court cann otalways, an d for the purpo se of al l sorts of quest ions, sa y that the reis b ut on e r ight and permissible way of con struing the const itution.\ ITh en a cour t i s in terp re t ing a wri t ing merely to ascerta in orapply i t s t rue meaning, then, indeed, there i s but one meaningal lowable namely, what th e court adjudg es to be i ts t ru e meaning.B ut w hen th e ul t imate q uest ion is not th at , but w hether certainac ts of an ot he r de pa rtm en t, officer, or individual ar e legal or per-missible , the n th is is not t rue. In th e class of cases which wehav e been consider ing, the zdltimnte question is ?tot what is the tvnellzca ning of the co tzstit~ltion,bzst whether. Z~g is/at ion i s stlstaimz b eor not.

Cap Count Hank v I l en ty , App Cas 741


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AJlERICA DOCTRINE O CONSTITUTIONAL LA W 2 I t may be sugges ted that th is is no t the way in which th e judgesin fact pu t the mat ter e g hat Marshall , in McCulloch z l Mary-

land, l seeks to establish th e court 's own opinion of th e consti tu-t ionali ty of th e legislation establishing th e Un ited St ate s Bank.Bu t in recognizing that th is is very of ten t rue , we m ust reme mb erthat where th e cour t is sus ta in ing an A ct , and f inds i t to b e const i -tutional i n its own opinion, it is fit th at this should be said, an dtha t such a declaration is all tha t the case calls for ; i t d isposesof the ma t ter . But i t i s no t a lways t rue the re a re m any caseswhere th e judges sus ta in an Act because they are in doubt about i t ;where they are not giving their own opinion that i t is consti tu-t ional, but are m erely leaving untouched a dete rmination of t heleg is la ture as in the case where a hIassachuse t ts judge concurredin th e opinion of his brethren th at a legislative A ct was compe-. t e nt for th e legislature to pass, and was not uncons ti tutional,"

upon t he s ingle ground tha t t he A ct is no t so c learly unconst i tu-t ional, i ts invalidity so free from reasonable dou bt, as to m ake i tth e doty of th e judicial dep artm ent, in view of th e vast inter estsinvolved in th e result , to declare i t void." T he con stan t declara-t ion of the judges tha t th e question for the m is not on e of the m ereand simple prepond erance of reasons for or aga inst , but of w ha tis very plain an d clear , clear beyond a reasonable do ub t, thisdeclaration is really a s teady announcement that their decisions insup po rt of th e con stitutio nality of legislation do no t, a s of course,impor t their own o p i ~ i o n f the t rue construction of the const i tu-t ion, and tha t the str i ct mea ning of their words, when they holdan A ct consti tutional, is merely this , -not unconsti tutiona l beyonda reasonable doubt. I t may be added th at a suff icient explanationis found here of som e of th e decisions which have alarm ed m anypeople in recent years , -as if th e cour ts were turn ing out bu t abroken reed.3 AIany more suc h opinions are to be exp ecte d, for,while legislatures are of ten faithless to their trust , judges some-times ha ve to confess th e l imits of their own power.

I t al l comes back, I think, to this . T h e ru le under discuss ion4 Wheat . 316.Per Thomas, J. the Opinion of Justices, 8 Gray, p . 2 1 .It matters little,"says a depressed, but interesting and incisive writer, in com-

menting, in ISSS, upon the Legal Tender decisions of the Supreme Court of the UnitedStat es, "fo r the co urt h as fallen, and it is not probable it can ever again act as an effect-ive check upon the popular will , or should i t a t tempt to do so, that i t can prevail ."T h e "Cons olidation of the Colonies," by Brooks Adam s, Atlantic Monthly, 307,


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26 A,IIER/CA IV O TRI,\-E OF COArSTI TUTIOA AL LA I .has in i t an implied recognit ion that the judicial duty now in ques-t ion touch es th e region of polit ical adm inis trat ion, and is qualifiedby th e necessi t ies an d propriet ies of ad m inis tra t ion . If our doc-t r i ne of cons t i tu t ional law- which finds itself, as we have seen, inthe shap e of a narrowly s ta ted su bs tant ive pr inc iple , wi th a ru le ofadm inis t ra t ion enlarging the o therw ise too rest r icted subs tant iverule -ad m its now of a jus te r and s impler concept ion, tha t i s ave ry fam ilia r situatio n in th e developm ent of law. \\. 'hat reallytook place in ado pting o ur theory of consti tut ional law was th iswe introd uced for th e f irs t t ime i nto th e condu ct of go ver nm entthrough i t s grea t dep ar tm ents a judic ia l sanc t ion, as am ong thesedepar tm ents , not fu l l and comple te , but par tia l. T h e judgeswere al lowed, indirect ly an d in a degree, th e power to revise th eaction of othe r depa r tm ents and to p ronounce i t nu ll . I11 simplet ru th , whi le th i s is a m ere judicial function, it involves, owing to th esu bjec t-m atte r w ith ~ ~ h i c ht dea ls , taking a p ar t , a secondary par t ,in th e polit ical condu ct of gov ernm ent. If t ha t be so, then th ejudges m ust apply m etho ds and principles tha t befit their task.I n such a work the re can be no pe rmanen t or f i t t ing to ~ts ~ ~ I ~ J Z ~ ~betwe en th e different de pa rtm en ts unless each is sure of th e ful lco-operation of th e others , so long as i ts own action conforms to anyreasonab le and fairly perm issible view of i ts co n~ ti t ut io na lpower.T h e u lt i m a te a rb it e r of what is rational and permissible is indeedalways the c our ts , so fa r as l it iga ted cases br ing th e ques t ionbefore them. T hi s leaves to our cour ts a grea t and s ta te ly juris -dict ion. I t will only imperi l the whole of i t if i t is sou gh t to givethem more . Th ey m ust not s tep in to the shoes of the law-maker,or be unmindful of the h in t tha t is found in th e sagac ious remarkof an English bishop nearly two centuries ago, quoted lately fromMr. Jus t i ce Holmes

\\. heel-er hath an absolute authority to interpret any written orspoken laws, i t is he who is truly the lawgiver, to all intents and pur-poses, and not the person who first wrote or spoke them.By Professor Gray i n I-Iarv. Law Re v. 33 n., where he justly refers to the rema rk

as showing th at gentlemen of the sho rt robe have sometimes grasped fundamentallegal principles better than many lawyers.

2 Bishop Hoadly ' s Sermon preached before the King , March 31 1717 on TheNat ure o f the King dom or Chu rch of Chris t. Lond on : Ja me s K na p ton , 1 7 1 7 I tshould be remark ed tha t Bishop Ho adly is speaking of a s ituation where the supposedlegislator, after onc e issuing his enactm ent, never interposes. T ha t is not strictly thecase in h a n d ; yet we may recall what IXcey says of amellding the co~ lsti tutio n f the

6


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MERIC V DOCTRINE OF CONSTITUTION L L W 27V. Finally, let me brief ly mention one or two discriminationswhich are often over looked, and which are imp or tant in order to a

clear und ersta ndin g of th e ma tter . Ju dg es som etimes have occa-sion to express an opinion upon th e consti tutionality of a sta tut e,when the rule which we have been considering has no application,or a different application from th e common one. Th ere are at leastthree s i tuat ions which should be d is t inguished ( I ) where judgespass upon th e validity of th e ac ts of a co-ordinate de pa rtm en t ; 2)where they act as a t lv isers of the o ther dep ar tm ents (3) where,as repre sent ing a go vernm ent of paramount author i ty , they dealwith acts of a department which is not co-ordinate.

I ) T h e case of a court passing upon th e validity of th e ac tof a co-ordinate depar tm ent is the normal s i tuation , to which theprevious observations mainly apply . I need say no more aboutthat .

2) A s regards th e second case, th e giving of advisory opinions,this, in realit y, is not t h e exercise of th e judicial functio n a t all,an d the opinions thu s given have not th e quality of judicial au-thority.' A single exceptional and unsupported opinion upon thissubj ect, in th e St at e of JIain e, made at a t ime of great politicalexcitement,%nd a doctr ine in th e St a te of Colorado, founded uponconsiderations peculiar to t he consti tution of tha t Stat e,3 do notUnited States T h e sovereign of the United States has been roused to ser ious act ionbut once during the course of ninety years . I t needed the thunder of the Civi l W ar t obreak his repose, an d i t may be doubted whether anything sho rt of impending revolu-tion will ever again arou se him to activity. But a monarch who slum bers for years islike a monarch who does not exist. A federal constitution is capable of change, but,for all that, a federal constitution is apt to be unchangeable.

Corn. v. Green, 1 3 Allen, p. 163; Taylor v. Place, 4 R. I. p. 362. See Thayer ' sl l Iemorandum on Advisory Opinions (Boston, 1885 , Jameson, Con st. Conv., 4th ed.,Appendix, note r p. 667, an d a valuable article by H. A. Dubuque, in 24 Am. LawRev. 369, on T h e Du ty of Judges as Const i tut ional Advisers.

pinion of Jus tice s, 70 Y e ., p. 583 1880). Contra Kent, J., in 58 \re., p. 5731870): I t is true, unq uestionably, tha t the opin ions given under a recluisitiorl l ik e this

hav e no judicial force, and cann ot bind o r control the action of any officer of any depar t-ment. Th ey have never been regarded as binding on the body asking for them. An dso T apley, J. ibid., p. 6 1 5 : N ev er regarding the opinions thus formed as conclus ive ,but open to review upon every proper occas ion; and Libby, J ., in 72 Me., p. 562-31 8 8 1 ) : Inasmuch s any opinion now given can have no effect if the matter sho uldbe judicially brou ght before the court by the prop er process, an d lest, in declining to

answer, I may omit the performance of a constitutional duty, I will very briefly expressmy opinion up on- the quest ion submit ted. W alton , J . , con curre d; the other judgessaid nothing on this point .

8 n Senate Bill, r 2 Colo. 466, -an opinion which seem s to me, in some respects ,l l considered.


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call for ally qualification of t he general rem ark, th at su ch opinions,give n by ou r judges,-l ike tha t well-known class of opinions givenby th e judges in E ngland when advis ing the Hou se of Lords ,which sugg este d our own practice, are mere ly advisory, and inno sense au thori ta t ive judgme nts1 Under our cons ti tu t ions suchopinions ar e not general ly g iven. In the s ix or seven Sta tes whereth e const i tu t ions provide for them , i t i s the pract ice to repor t theseopinions am ong th e regular decis ions , much as the responses ofth e judges in Q ueen Caro line s Case , and in M acS agh ten ls Case ,in Eng land , a re r eported , and somet in les c ited , as if they held e q ~ ~ a lrank with t rue adjudications. A s regards such opin ions , the scru-ples, cau tions , and warning s of which I have been speaking, andthe rule about a reasonable doubt, which we have seen emphasizedby th e cou rts a s reg ards judicial decisions upon the consti tution-ali ty of legislative Act s, have no application. W ha t is asked for isth e judge s own opinion .

(3) U nd er the th ird head come the quest ions ar is ing out of theexistence of our double sys tem , with two written co nsti tutions, andtw o gov ernm ents , one of which , within its sphe re, is of higherauth ority than th e other . T h e relation to the Sta tes of the para-mo unt gov ernm ent as a ivhole, and its duty in all questions involv-ing the powers of th e general governm ent to maintain th at poweras aga inst th e St ate s in i ts fulness, seem to fix also the duty ofeac h of i ts de pa rtm en ts; nam ely, that of m aintaining this para-mo unt auth ority in i ts tru e and just proportions, to be determ inedby itself. f a S ta te legislature passes law which is impeachedin the du e course of l i tigation before th e national cou rts , as beingin conflict with th e sup rem e law of the lan d, those co urts may haveto ask them selves a question different from tha t which would beapplicable if the enac tm ents were those of a c o-ordinate departm ent.\]-hen the question relates to wh at is admitted not to belong to thenational power, then whoever con strue s a St ate const i tu t ion , whetherth e Sta te o r national judiciary, mu st allow to t hat legislature th e fullran ge of rational construction. But when the question is whe therSt ate act ion be o r be not conformable to the paramount const i tu-tion, th e s up rem e law of the land, we have a different m atter i nhan d. Fu nda m enta lly, i t involves the allotme nt of power betweenth e two governments , where the l ine is to be drawn. Tru e, th ejudiciary is st i l l debating whether a legislature has transgressed i ts

Z acquee~l sPract. 110 of Lords, pp. 49, 50.


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l imi t ; bu t th e dep ar tme nts a re no t co-ord ina te , and the l imi t i sa t a different point. T h e judic iary now speak s a s represen t inga paramoun t const i tut ion and gov ernm ent , whose du ty i t i s, in alli ts dep ar tme nts , t o a llow to th at const i tut ion noth ing less than i tsjus t and t rue inte rpreta t ion ; an d having fixed this , to gu ard i tagain st any inroad s from without.

I have been spe akin g of th e nation al judiciary. A s to how theState judiciary should treat a question of the conformity of an Actof their own legisla ture to the paramoun t con st i tut ion, i t has beenplaus ibly sa id that they should be governed by th e sam e rule tha tth e Fed eral cou r ts would apply. S in ce an appeal l ies to th e Fed -eral courts , the se two tr ibun als , i t has been said, should proceed o nthe same rule, as being par ts of one system. But under the Judic iaryA c t an appe al does not lie from every decision ; i t only l ies whenth e S ta te law is szrsinitred below. I t would p erhaps be soun d ongeneral principles, even if an appeal were allowed in all cases, herealso to adh ere to th e gene ral rule t ha t judges should follow any per-missible view which th e co-ordinate legislature has adopted . A tany ra te , under exis t ing legis lat ion i t seems proper in the St a t ecourt to do this , for t he practical reason that this is necessary inorder to preserve the right of appeal. '

T h e view which has thus been presen ted seem s to me highlyimpor tant . I am not s t a t in g a new doc t r ine , bu t a t tem pt ing tores ta te more exactly and t ruly an admit ted one. If what I havesaid be sound, i t i s great ly to be des ired tha t i t should be moreemphasized by our courts , in i ts full s ignif icance. I t has beenof ten remarked that pr ivate r ights ar e more respected by th e legis -la tures of some countr ies which have no wr i t ten const i tut ion, th anby ours. N o do ubt our doctr ine of co nsti t utio nal law has had atendency to dr ive out ques t ions of jus t ice and r ig ht , and to i l l t h emin d of leg islators with tho ug h ts of m ere legality, of wh at th econsti tutio n allows. A nd mo reover , even in the mat ter of legali ty,they have felt l i t t le responsibil i ty; i we are wrong, they say, th e

Gibson, J. in Eakin v Raub, 12 S R., p. 357 Compare Ib . , p. 352 The sameresult is reached by the cou rt , on general principles, in Th e Ton nage T ax C ases, 62 Pa.S t . 86 : A case of simple doub t should be resolved favorably to the S tat e law, leav-ing the correction of the error, if it be one, to the F ederal judiciary. T h e presumptioni n favor of a co-ordinate branch of the Sta te gover nment, the relation of her courts tothe S tat e, and , abov e all, the necessity of preserving a financial system s o vital to herwelfare, denland this at our hands (Agnew, J. for the court).


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3 AMZh ICAiV DOCTRINE OF CONSTITUTIONR L Wcourts will correct it.' Meantime they and the people whom theyrepresent, not being thrown back on themselves, on the responsibleexercise of their own prudence, mord sense, and honor, lose muchof what is best in the political experience of any nation ;and they arebelittled, as well as demoralized. If what I have been saying is true,the safe and permanent road towards reform is that of impressingupon our people a far stronger sense than they have of the greatrange of possible mischief that our system leaves open, and mustleave open, to the legislatures, and of the clear limits of judicialpower ; so that responsibility may be brought sharply home whereit belongs. The checking and cutting down of legislative power,by numerous detailed prohibitions in the constitution, cannot beaccomplished without making the government pettx and incom-petent. This process has already been carried much too far insome of our States. Under no system can the power of courts gofar to save a people from ruin ; our chief protection lies elsewhere.If this be true, it is of the greatest public importance to put thematter in its true light.=

A singular result of the importance of constitutional interpretation in the Ameri--can government is this, that the United States legislature has been very largelyoccupied in purely legal discussions. Legal issues are apt to dwarf and obscurethe more substantially important issues of principle and policy, distracting from theselatter the attention of the nation as well as the skill of congressional debaters."- Bryce,Am. Cam, 1st ed., 377 On page 378 he cites one of the best-known writers on con-stitutional law, Judge Hare, as saying that In the refined and subtle discussionwhich ensues, right is too often lost sight of, or treated as if it were synonymous withmight. It is taken for granted that what the constitution permits it also approves,and that measures which are legal cannot be contrary to morals.", See also Ib. 410.volond populaire: tel est, dans les pays libres de l'ancien et du NouveauMonde, la source et la fin de tout pouvoir. Tant qu'elle est saine, les nations pros$-rent m i d les imperfections et les lacunes de leurs institutions; si le bon sens fait dC-faut, si es passions l'emportent, les constitutions les plus parfaites, les lois les plus sages,sont impuissantes. La maxime d'un ancien quid lefts sine nrm bw?est, en somme,le dernier mot de la science politique. L e S y s th c jd iE ia i r c dc la Crnndr Brdt(4PIIC,by le Comte de Franqueville, i. 5 (Paris: J. Rothschild, 1893 .

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Doctrine of Constitutional Law and amendment

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